IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : CRIMINAL NO. 05-440-09

HAKIEM JOHNSON :

HAKIEM JOHNSON :

v. : CIVIL NO. 14-7127

TERRY O’BRIEN, Warden :

ORDER

AND NOW, this day of , 2015, upon consideration of the 

defendant’s motion under 28 U.S.C. § 2255, and the government’s response to 

that motion, it is hereby

ORDERED

that the motion is dismissed as untimely.

BY THE COURT:

____________________________

The Honorable R. Barclay Surrick

United States District Judge

Case 2:05-cr-00440-RBS Document 1632 Filed 01/05/15 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : CRIMINAL NO. 05-440-09

HAKIEM JOHNSON :

HAKIEM JOHNSON :

v. : CIVIL NO. 14-7127

TERRY O’BRIEN, Warden :

GOVERNMENT’S RESPONSE TO

DEFENDANT’S MOTION UNDER 28 U.S.C. § 2255

Defendant Hakiem Johnson’s motion for relief under 28 U.S.C. § 2255 

should be dismissed as untimely.

Johnson filed his motion in the Northern District of West Virginia, where 

he is confined, under 28 U.S.C. § 2241. That court correctly determined that 

Section 2241 is not an available basis for relief, since Johnson is challenging his 

conviction, not the conditions of his confinement. It asked Johnson if he wished 

to have the motion converted to one under Section 2255, and Johnson attested 

that he did. See No. 14-cv-006 (N.D. W. Va.), docket entries 14, 15. The West 

Virginia court then transferred the matter to this Court.

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The 2255 motion concerns Johnson’s conviction in this Court. On 

August 8, 2008, Johnson entered a guilty plea in this Court to two counts of the 

Fifth Superseding Indictment. Specifically, he pled guilty to Count 1, charging 

conspiracy to distribute five kilograms or more of cocaine and 50 grams or more 

of cocaine base (“crack”), in violation of 21 U.S.C. §§ 846 and 841(a)(1)(A), and 

Count 65, charging possession of a firearm in furtherance of drug trafficking, in 

violation of 18 U.S.C. § 924(c). On June 19, 2009, the Court sentenced Johnson 

to 120 months’ imprisonment on Count 1, and a consecutive term of 60 months’ 

imprisonment on Count 65.

Johnson did not file a direct appeal, or any timely motion for relief under 

Section 2255.

On January 21, 2014, Johnson filed in the Northern District of West 

Virginia the motion now before this Court. In it, he argues that his convictions 

violated double jeopardy. First, he asserts that the prosecution for conspiracy in 

Count 1 fails because he was convicted in state court in 2004 for conspiracy to 

distribute drugs. He adds that the 924(c) conviction in Count 65 must then fail 

because it is predicated on Count 1. Second, Johnson asserts that the government 

violated double jeopardy by dismissing the charge in Count 58 (which alleged 

possession of cocaine with intent to distribute on January 21, 2003), and then 

seeking to introduce evidence of that conduct in support of the conspiracy charge.

Johnson also suggests a variety of claims of ineffective assistance of counsel, 

asserting, for instance, that his attorney failed to file a timely notice of appeal.

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The motion under Section 2255 is untimely. Under 28 U.S.C. § 2255(f), a 

motion to vacate, set aside, or correct a sentence must be asserted within one 

year of the date that the judgment becomes final. The Third Circuit has held that, 

“if a defendant does not pursue a timely direct appeal to the court of appeals, his 

or her conviction and sentence become final, and the statute of limitations begins 

to run on the date on which the time for filing such an appeal expired.” Kapral v. 

United States, 166 F.3d 565, 577 (3d Cir. 1999). 

In this case, the Court’s judgment was entered on June 19, 2009. Under the 

version of Federal Rule of Appellate Procedure 4(b) in effect at the time (which 

allowed for 10 days to file a notice of appeal, not including weekends), he had 

until Friday, July 3, 2009, to present an appeal. As he did not do so, his one-year 

period to file a motion under Section 2255 expired on Tuesday, July 6, 2010.1

Johnson did not file his motion until 31⁄2 years later.

The “savings clause” of Section 2255, which allows recourse under Section 

2241 and to which Johnson resorted, does not assist him, as the West Virginia 

court correctly held. The savings clause applies where the 2255 remedy is 

ineffective to address the petitioner’s claim, not where the petitioner fails to 

personally comply with Section 2255’s procedural requirements. Cradle v. United 

States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam). Thus, a 

2255 motion “is not inadequate or ineffective merely because the sentencing 

 1 The period expired on July 3, 2010, but that was a Saturday, and the 

ensuing weekday, Monday, July 5, was a federal holiday because the Fourth of 

July fell on a Sunday.

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court does not grant relief, the one-year statute of limitations has expired, or the 

petitioner is unable to meet the stringent gatekeeping requirements of the 

amended § 2255.” Id.2

In the Northern District of West Virginia, the magistrate judge speculated 

that Johnson might avoid the time limit if he established that his attorney was 

ineffective in failing to file a timely direct appeal, such that this Court may 

reinstate the judgment and restart the time to appeal. That is incorrect. To gain 

this relief, Johnson needed to file a timely 2255 motion making the ineffective 

assistance claim. He had a full year to do so; he waited 41⁄2 years. By the plain 

terms of Section 2255, his motion cannot be considered.

The motion is frivolous in any event, for multiple reasons. First, Johnson 

waived any double jeopardy claim by pleading guilty. United States v. Broce, 488 

U.S. 563, 570-71 (1989). Second, the conspiracy charge in Count 1 (and by 

extension the 924(c) charge in Count 65) did not violate double jeopardy because 

any state conspiracy conviction cannot foreclose a federal charge. See Heath v. 

Alabama, 474 U.S. 82, 88 (1985) (“The dual sovereignty doctrine, as originally 

articulated and consistently applied by this Court, compels the conclusion that 

successive prosecutions by two States for the same conduct are not barred by the 

 2 A 2241 motion may only be litigated in the district of confinement. 

Rumsfeld v. Padilla, 542 U. S. 426, 447 (2004). The Third Circuit has held that a 

defendant who is barred from filing a successive Section 2255 petition may seek 

relief under Section 2241 where his conduct may no longer be criminal due to a 

statutory interpretation issued after his Section 2255 proceeding has concluded. 

See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Johnson raises no such 

circumstance.

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Double Jeopardy Clause.”). And in fact, the state charge involved far narrower 

allegations than the multi-year conspiracy prosecuted by the federal government. 

Finally, Johnson’s claim that the dismissal of Count 58 precluded introduction of 

evidence supporting that charge to prove the conspiracy is frivolous, both as 

unsupported by law, and because Johnson pled guilty and the government in fact 

never introduced any evidence at a trial to prove his guilt.

In sum, Johnson’s untimely motion under Section 2255 should be 

dismissed.

Respectfully yours,

ZANE DAVID MEMEGER

United States Attorney

/s Robert A. Zauzmer

ROBERT A. ZAUZMER

Assistant United States Attorney

Chief of Appeals

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CERTIFICATE OF SERVICE

I hereby certify that a copy of this pleading has been served by first-class 

mail, postage prepaid, upon:

Mr. Hakiem Johnson

No. 60389-066

USP Hazelton

P.O. Box 2000

Bruceton Mills, WV 26525

/s Robert A. Zauzmer

ROBERT A. ZAUZMER

Assistant United States Attorney

Dated: January 6, 2015.

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